Standing Committee D

[Miss Anne Begg in the Chair]

Extradition Bill

Anne Begg: I welcome hon. Members back. We have a great deal of work to get through this afternoon. Could I remind the Committee that the knife comes into operation on Tuesday morning at 11.25 am. A large number of clauses and amendments remain to be debated.Clause 3 Arrest under certified Part 1 warrant

Clause 3 - Arrest under certified Part 1 warrant

Nick Hawkins: I beg to move amendment No. 14, in
clause 3, page 2, line 26, leave out 
 'or by an appropriate person' 
 and insert 
 'only on the specific instructions of the Home Secretary communicated by an officer of the rank of Chief Inspector or above.'.

Anne Begg: With this it will be convenient to take the following amendments: No. 118, in
clause 3, page 2, line 26, leave out from 'constable' to end of line.
 No. 16, in 
clause 3, page 2, line 29, leave out subsection (3).

Nick Hawkins: We are surprised not to have seen any Government amendments to the clause in view of what the Minister for Policing, Crime Reduction and Community Safety said in an exchange with my right hon. Friend the Member for West Dorset (Mr. Letwin) on Second Reading. The amendment seeks to introduce political accountability so that there can be parliamentary scrutiny of the procedures in the Bill. We also suggest that a senior British police officer should take an active part in the scrutiny. Amendment No. 118 has a similar purpose. The Liberal Democrats obviously do not like, any more than we do, the vagueness of the phrase ''an appropriate person''. Amendment No. 16 seeks to delete subsection (3) because we believe that it should be put on the face of that Bill that only British police officers should have the powers to use the warrant.
 I should like to refer back to what was said on Second Reading to reinforce our surprise at the absence of Government amendments. My right hon. Friend the Member for West Dorset asked: 
''The Minister said that only a British constable would exercise the warrant. Does that mean that he accepts that we need to amend clause 3, which allows the Secretary of State to designate absolutely anyone as an appropriate officer?''
 The Minister of State responded: 
''I said that it is the Government's intention that only British law enforcement personnel would be permitted to execute a European arrest warrant in this country. That means the police, but it could also include Customs and Excise. There are plenty of legal precedents for using the term 'appropriate person', including in legislation adopted by the Conservatives when they were in government to deal with powers of stop, search and entry that 
gave an even wider range of discretion to the Home Secretary. Given the point of principle that I have outlined, I have no doubt that the precise wording can be considered in Committee.''
 That is what we are doing. My right hon. Friend the Member for West Dorset then intervened again and said: 
''It would be helpful if I could take it that the Minister is willing to redefine the clause so that it clearly applies to British law enforcement officers.''
 The Minister replied: 
''I am saying that there is plenty of precedent in almost identical circumstances in which Governments, including Conservative Governments, have restricted a power to British law enforcement personnel even though they have used the term 'appropriate person', or something similar, in legislation. That should give the House sufficient confidence in this Government's intention to use the Bill in the same way. I have no doubt that the matter will be considered in Committee.''—[Official Report, 9 December 2002; Vol. 396, c. 42–43.]
 After that exchange, in which my right hon. Friend expressed serious concerns about what should be in the Bill, which many outside commentators and bodies share, I was reasonably confident that the Government would clarify the matter by tabling their own amendments to specify a British police officer or a member of Customs and Excise. They have not done so, and as a result the Bill remains defective. It is not good enough for Ministers in the future to have the power to designate anyone to be an appropriate person. It should be stated in the Bill, and I hope that the Minister will undertake to keep the matter under consideration. There may be precedents in other legislation, as the Minister said, in which the phrase ''appropriate person'' has been used, but in this case the Government are introducing new and much more draconian powers. Therefore, British citizens need the protection of knowing exactly who will be able to use the powers. It should be just a British police officer or a member of Customs and Excise and the Bill should state that.

Alistair Carmichael: As the hon. Member for Surrey Heath (Mr. Hawkins) said, the same thinking is behind amendment No. 14 and the amendment No. 118 that my hon. Friend the Member for Torridge and West Devon (Mr. Burnett) and I have tabled. I have some reservations about the manner in which the Conservative amendment would achieve the Home Secretary's intervention through a senior police officer of chief inspector rank or higher. It seems an unnecessarily cumbersome and prescriptive way to achieve that end, but as regards what it seeks, there is not a great deal between us.
 Like the hon. Member for Surrey Heath, I have considerable concerns about the phrase ''appropriate person''. I should be interested to hear who the Minister thinks is an appropriate person if it is not a constable. I take the point made by the hon. Member for Surrey Heath that members of Customs and Excise would routinely execute warrants in the course of their duties and they might well fall within the ambit of consideration, but I can see no reason why such people should not be specified in the Bill. The only other people I can think of who would execute warrants are constables in the Transport police, who would probably be included in the term ''constable'' in any event. 
 With regard to subsection (c), which one of the amendments would delete, I am curious to hear why the Minister thinks that it is necessary to include it in the Bill. We are dealing with a situation that is outwith the ambit of the normal execution of warrants. Clause 2 deals with the information provided on the certificate. The Government have already included in the certificates a fair degree of detail about the identity of the person in respect of whom the warrant is sought. Having an arrest warrant at least in the possession of an arresting officer would be a useful device for avoiding any possible claim of wrongful arrest. I am interested to hear why the Minister feels that such a protection is unnecessary. The provision takes us outwith the ambit of what is normally acceptable in terms of an arrest warrant. 
 The point about deleting subsection (3) is much the same as the point about deleting the reference to ''an appropriate person''. I cannot think off the top of my head who the appropriate person would be, and I do not understand why the terms of the Bill are left so vague. This part of clause 3 seems to proceed on the basis that the law relating to the execution of arrest warrants is somehow easy, but the Minister should know from the substantial body of case law that that is not so. Not having that protection in the Bill leaves considerable scope for misunderstanding, miscommunication of identification and all the rest of it. Unless there is a good reason for not having such a protection, I see no reason why the amendment should not be accepted.

John Burnett: I have not had a chance to welcome you to the Chair, Miss Begg, although you had a watching brief during yesterday morning's sitting—[Interruption.] I mean Tuesday morning; I lost a day because I returned to my constituency to give prizes at a school last night, and I am slightly worn by the cares of time and distance. Nevertheless, I am delighted to welcome you as Chairman.
 I wish to add a few points to those made by the hon. Member for Surrey Heath and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael). Will the Minister be so kind as to say who he believes will be the appropriate person? The provision is particularly nebulous and unsatisfactory in our view. The people and agencies involved in this important task should be defined in primary legislation. Increased numbers of civilian members of the police and other bodies—for example, the security services—are executing a power of arrest. To deprive a person of his liberty is a significant matter, so there should not be scope to allow the power for persons not currently authorised to arrest. Liberal Democrats and, I believe, Conservative Members look forward to hearing the Minister say exactly whom he believes will be authorised as an appropriate person under the clause.

Bob Ainsworth: I will happily do that. Under the Bill, a European arrest warrant may be executed—that is to say, a person arrested—by a constable or an appropriate person designated for
 the purpose by an order passed through the House of Commons by affirmative resolution. That is a well established formulation, for which there are ample precedents.
 I invite members of the Committee to consider section 7 of the Criminal Justice (International Co-operation) Act 1990—they should remember who was in power at the time—which confers powers of entry, search and seizure. It provides that 
''the Secretary of State may by order direct that any of those powers shall be exercisable by a person of any other description specified in the order''.
 That was passed by members of the Conservative party in government. It was adequate for them then, but in opposition the reference to an appropriate person to be designated by an order passed by affirmative resolution has become unacceptable. My only fear in changing the words is that we would pander to blatant Euroscepticism in so doing. There is an important difference: the order made under the 1990 Act was subject to the negative resolution procedure. We are proposing the affirmative resolution procedure. No one other than a constable will be able to execute a European arrest warrant unless there has been a positive vote in both Houses of Parliament. 
 The hon. Member for Torridge and West Devon asked whom I regarded as an appropriate person. There is no contradiction between what I and my right hon. Friend the Minister for Policing, Crime Reduction and Community Safety said on that point. Customs and Excise and various service police forces are significant players in the area, given the number of military personnel who seek service overseas. Those are the sort of people who we see as appropriate. 
 We have no plans to designate any other persons or bodies, but we need to retain some flexibility as the structure of British law enforcement changes. It changed recently when we established the National Crime Squad, which did not previously exist. It would be ridiculous for us to have to return to primary legislation in such circumstances. 
 No foreign law enforcement officials will be designated to execute a European arrest warrant in this country. That is not what the Government want or have ever intended. Hon. Members should stop reading certain sections of the press, or at least stop believing them. Having set out why we believe that the current formulation of the Bill is appropriate, I turn to the detail of the amendments. Their effect would be to make it impossible to designate any individual law enforcement officers committed to execute a European arrest warrant. The Opposition propose instead that each time a person other than a constable wants to execute a warrant, he will need the Home Secretary's permission on a case-by-case basis. Let us suppose that a Customs officer investigating a domestic case stalls a foreign individual subject to a European arrest warrant. If these amendments were passed, the Customs officer could not arrest or even detain the person until the Home Secretary had personally given him his permission. If the Home Secretary happened 
 to be unavailable, that would just be bad luck and the suspect would go free. I hope that the hon. Gentleman will not therefore press for what would clearly be a ridiculous set of arrangements.

John Burnett: It is important for us to know what the Minister envisages at this stage. I presume that he does not envisage powers of arrest exercised, for example, by members of the Inland Revenue thrust unto Customs and Excise, nor powers of arrest exercised by members of the security services—

Bob Ainsworth: Constables, Customs officers and members of service police authorities are the only sort of people who we foresee in the role. We are talking not about the negative procedure, about which hon. Members became so exercised on another clause; we are talking about the affirmative procedure whereby the order will come before both Houses of Parliament for the approval of any extension beyond a constable. That gives people an understanding of the control that Parliament still has over any extension of the powers of arrest under the European arrest warrant. The Liberal Democrat amendment would go even further, and would limit the power of arrest of the EAW to a police constable—end of story. In the scenario that we have just considered, a Customs officer who came across someone subject to an EAW could take no action other than to inform the police of the whereabouts of the person, and in some circumstances would watch them sailing out of sight and beyond the reach of any action.
 If we were to delete subsection (2)(c), as the amendment seeks to do, a constable would have to have a copy of the arrest warrant in his possession in order to effect an arrest. Overwhelmingly, arrest warrants are going to be effected proactively.

Anne Begg: The hon. Gentleman is talking to a separate set of amendments.

Bob Ainsworth: I am sorry. I sought to respond to the point raised by the hon. Member for Surrey Heath. I will leave my comments at that point.

Anne Begg: The hon. Gentleman should be referring to subsection (3), not subsection (2)(c), which is part of a separate set of amendments.

Bob Ainsworth: I apologise. The issue is therefore whether ''an appropriate person'' is an acceptable term, coupled with the affirmative resolution procedure in the House for any extension to include someone other than a constable. I argue that that is a well-worn formulation. It is acceptable, and I ask the Committee to accept my assurances in the clearest terms that there is no intention to allow, now or in the future, any foreign law enforcement officer to exercise his powers in the United Kingdom. The provision is intended to be applied to the people whom I have detailed.

Nick Hawkins: The Minister is well aware that no Government can bind their successors. I have no doubt that he is entirely genuine in expressing his personal views about what the legislation means and how he hopes that it will be exercised. Unfortunately for him, the Crime (International Co-operation) Bill is currently being debated in the other place. The
 Minister may have noticed that we have tabled new clause 4 on the compatibility or, as we would say, the mismatch between that Bill and this one. Although it is starred, we hope that we will have the chance to debate it later. My noble Friend, the Baroness Aneley of St. Johns, is the Opposition spokesman on the Bill in the other place, and has pointed out that, contrary to what the Minister said, the Government are proposing in that Bill to give foreign police officers the power of hot pursuit into this country.
 I am sure that the Minister is honest in his comments on this Bill, but we see the floodgates opening and a general trend emerging towards overseas officers coming into the country. A future Government might say that, as the Crime (International Co-operation) Act already contains a provision that allows hot pursuit for a few hours, perhaps they will designate these people as appropriate persons. We are concerned that the two Bills run contrary to each other.

Bob Ainsworth: I am sure that the hon. Gentleman realises that the Crime (International Co-operation) Bill, which is open to scrutiny to all Members, albeit in the other place, provides for a surveillance operation that has been started abroad to be continued for up to five hours in order to effect a handover. It gives no powers of entry or of arrest. It would be wrong of the hon. Gentleman to suggest that it does.

Nick Hawkins: I made it clear that it is only for a matter of hours, but in that Bill we see for the first time the prospect of foreign police officers operating on our territory. The Minister cannot bind a future Government, but they may well say, ''Now that the precedent has been set in the Crime (International Co-operation) Act, we will designate those people as appropriate for the subsequent Act.'' That is the slippery slope down which we do not want to go and it is why I shall press the amendment to the vote.
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 9

Question accordingly negatived.

John Burnett: On a point of order, Miss Begg. To be absolutely clear, I wanted to record an abstention, but I used the expression, ''No vote''. Has that been recorded?

Anne Begg: Abstentions are not recorded—either in Committee or in the Chamber.

John Burnett: I hope that I have not been recorded as having voted no.

Anne Begg: No. The straight answer is that there is no such thing as an abstention.

Nick Hawkins: I beg to move amendment No. 15, in
clause 3, page 2, line 27, leave out subsection (c).

Anne Begg: With this we may take the following amendments:
 No. 17, in 
clause 4, page 2, line 34, leave out 'and he asks to be shown the warrant'.
 No. 129, in 
clause 4, page 2, line 34, before 'must', insert 'in a language he can understand'.
 No. 92, in 
clause 4, page 2, line 35, leave out 'after his request'.
 No. 130, in 
clause 4, page 2, line 35, leave out 'request' and insert 'arrest'.
 No. 155, in 
clause 71, page 36, line 2, leave out ', and he asks to be shown the warrant,'.
 No. 156, in 
clause 71, page 36, line 2, after 'it', insert 'in a language that he can understand'.

Nick Hawkins: I understand entirely why the Minister was getting ahead of himself just now and becoming confused. It is easy to confuse provisions such as ''delete subsection (c)'' and ''delete subsection (3)''. When a Liberal Democrat Member mentioned the other issue, I was going boss-eyed myself trying to work out which provisions came in what order.
 To make it clear, we are now dealing with a group headed by our amendment No. 15, which is designed to delete subsection (2)(c). It is vital in dealing with such serious powers that the person executing the warrant actually possesses the real warrant at the time of the arrest. Otherwise, where are the protections of our civil liberties? It is extraordinary that the provision allows the execution of the warrant even if neither the warrant nor a copy of it is in the possession of the person executing it at the time of arrest. That goes far too far. 
 Distinguished commentators are also concerned about the problem. I have often referred to the worries of organisations such as Liberty, the Law Society, Justice and the Freedom Association. On this occasion, a distinguished constitutional lawyer and jurist, Leolin Price QC, has written to my right hon. Friend the Member for West Dorset and discussed with me his concerns about the wide nature of the Government's powers. The Government propose that if the person making the arrest does not possess either the warrant or a copy, a copy must be shown to the person as soon as possible after the arrest, but as Leolin Price QC rightly says, why should the burden of the request fall on the person being arrested, who is likely to be stressed, anxious and confused? Surely the burden should fall on the person making the arrest—the state, as it were. Otherwise, we run the risk of becoming a police state. 
 It is extraordinary to hear the Government say that it does not matter if the arresting officer does not have a warrant or a copy of it. It is a tradition of British law, civil liberties and the protection of the subject that people are entitled to ask, ''Where is your warrant?'', if 
 they are about to be arrested or have their home searched. Traditionally, without a warrant, it cannot happen. Here, however, a warrant or a copy of it only has to be produced later on. 
 The concerns of Leolin Price go much further. He argues that the provisions do not comply with article 11(1) of the framework decision, even if allowance is made for the scope of a member state's choice of form and methods under article 34.2(b) of the Treaty of Union— 
 Sitting suspended for a Division in the House. 
 On resuming—

Nick Hawkins: Leolin Price QC's opinion reads:
''When [which means at the time when and not at some subsequent time] a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents''.
 Leolin Price has rightly underlined ''and of its contents''. That is the point we are dealing with. The Government's legislation specifically does not provide for that and therefore allows the arrested person not to be shown a warrant. 
 As Leolin Price points out, a European arrest warrant extends to no fewer than six A4 pages, including 11 boxes, one of which occupies an entire page. He rightly asks: 
''How is an arrested person to be informed of all that material [and 'the contents' means all the contents] if neither the warrant nor a copy is in the arresting person's possession at the time of the arrest?''
 Proper civil liberties in this country require that the arresting person must have in his possession either the warrant itself or a copy. We are not being unrealistic and saying that it must always be the original warrant, but it should be a minimum requirement that the arrested person should be shown a copy of the warrant at the time of the arrest. 
 What reason would there be for the arresting officer not to have a copy of the warrant? It could be pure incompetence only if it were not possible to provide a copy of the warrant. It seems to me the minimum requirement. As Leolin Price puts it, the only satisfactory and fair rule is that there should be a copy of the warrant and the person who is to be subject to it should be 
''allowed time to read it and to listen to the arresting officer's explanation of its contents''.
 Leolin Price then talks about the question of appropriate persons, with which we dealt under the previous group of amendments. I cannot see any good reason why it should not be a minimum requirement that a copy of the warrant should be available to the arrested person.

Alistair Carmichael: I apologise to the Committee for having thrown a red herring into the debate on the previous group of amendments. It was my fault that we started talking about the deletion of subsection (2)(c). The benefit is that it allows me to ask the Committee to disregard anything that I said previously.
 I cannot see the need for this provision because it does not leave the arresting officer in any different position. If it did not exist, a European arrest warrant could be exercised and executed in the same way as any other arrest warrant. Why is it necessary to have express provision if the document need not be in the possession of the arresting officer or the person executing the warrant? I do not understand. The Minister will say that greater clarity could have been achieved, if it was needed, by providing that the warrant would be subject to the same law as governs the execution of any other warrant in any jurisdiction in the United Kingdom. I do not see what has been achieved. 
 I do not agree with the hon. Member for Surrey Heath's comment that the only reason the person making the arrest would not have a warrant on them would be incompetence. In my experience, warrants of arrest are often executed when a person comes to the attention of the police or, as it will apparently be, the appropriate person in relation to another matter, which might be something as trivial as a speeding or other traffic offence. At that point, it is routine for the police officer on the beat to radio the station to say, for example, ''We have someone who says that he is Alexander Morrison Carmichael, date of birth 15 July 1965. Can you tell us whether there are any warrants outstanding for his arrest?'' As I am a Liberal, I have no convictions, so it should not be a problem. That was a wee bit subtle, so I will try not to do that again.

Tom Harris: Does the hon. Gentleman mean that he is only 37?

Alistair Carmichael: Yes, I am 37.

Bob Ainsworth: I was going to say that I was surprised that the hon. Gentleman is so young.

Alistair Carmichael: I am touched, although I have now completely lost the thread of what I was saying.
 In the circumstances outlined by the hon. Member for Surrey Heath, every constable in the Northern constabulary would have to carry round six pages of A4 per European arrest warrant. That would surely cause difficulty as more and more arrest warrants are issued. I do not understand why European arrest warrants should be in a different category from arrest warrants issued by a British court, and I do not see why they need an express provision either.

Tom Harris: Does the hon. Gentleman agree with me about the comments of the hon. Member for Surrey Heath on the tradition in England, Wales and Scotland of an individual being able to demand an arrest warrant before giving him or herself up to the police? Is it not true that the police have always been able to arrest someone whether or not they have a warrant for their arrest? Although that is not specific to the European arrest warrant, the tradition is not set in stone that the police need to carry an arrest warrant or have one issued before someone is arrested.

Alistair Carmichael: Yes, I agree up to a point. The power of arrest without warrant is old, but there are other requirements. There has to be a reasonable suspicion or belief on the behalf of the arresting constable that the individual has committed a crime.
 The basis of an arrest on warrant has to be that the constable or appropriate person has reasonable cause to believe that a warrant is in existence for that person. That is normally done by the constable radioing back to the station and being told that a warrant is held in the Scottish Criminal Record Office or the English version of it. Once the person is taken back to the police station, they can be shown the warrant then. I do not see why a European arrest warrant should come under a different system.

John Burnett: I should like the Minister to elaborate a little further about how he sees the arrest proceeding. It would also be interesting to hear what legal advice would be available to a person, when it would be available, what duty there is on the state to provide that legal advice, and when the state—

Anne Begg: Order. The hon. Gentleman's point relates to a separate group of amendments. He will be able to make his points when we reach those amendments.

John Burnett: Thank you, Miss Begg. I asked those questions because they touch on amendment No. 17. An ordinary layperson who is arrested might be ignorant and not alive to the fact that he should see a copy of the warrant. Once he seeks and obtains legal advice he will be probably be advised to get a copy of it.

Nick Hawkins: I am slightly puzzled because I expected that the hon. Gentleman or the hon. Member for Orkney and Shetland would be discussing their amendment No. 129 with amendment No. 130.

John Burnett: I am coming to that.

Nick Hawkins: I am glad that the hon. Gentleman will be discussing that. I was about to indicate that although it is their amendment, we support it, because we know that it has been put forward by Justice.

John Burnett: I am grateful to the hon. Member for Surrey Heath for his support. Amendment No. 129 is self-explanatory. It would require that when the warrant is produced—I look forward to hearing from the Minister on the matter of legal advice, for the reasons that I have just given—it should be intelligible to the individual concerned, and not just to the legal adviser. Amendment No. 130 would require that the warrant should be made available as soon as practicable not after the individual's request, but after his arrest.
 Our views on amendment No. 17 will be conditional on the response we receive from the Minister on the matter of legal advice, and in some respects amendment No. 130 marries up in part with amendment No. 17. 
 I look forward to hearing from the Minister about the immediacy of the legal advice and his comments on the fact that the warrant must be intelligible to the person arrested, in a language that the arrested person can understand, and that the warrant must be presented to him as soon as practicable after his arrest.

Bob Ainsworth: In many cases, where a warrant has been issued and communicated to the British authorities and the person's whereabouts are known,
 someone will go out, armed with that warrant, and the person will be shown the warrant at the point of arrest. However, Opposition Members must understand that, as in domestic legislation, there will be circumstances in which police officers will come across people in the normal course of their duties, and will have reasons to phone through to check their whereabouts or the bona fides of the individual concerned because of some other incident that has arisen. While carrying out those checks, they may come across the existence of a domestic warrant and, via the police national computer, the existence of a European arrest warrant.
 To ask that every police constable throughout the United Kingdom should carry every European arrest warrant with him at all times is nonsensical. If that is not what is being suggested, effectively we are saying that people who have been accused of serious international crime will be allowed to go free and to disappear. I hope that there is no one in the Committee who would support that. There is little else that needs to be said about the amendment, because that is the effect that it would have. 
 I am aware that, with regard to the argument advanced by the hon. Member for Orkney and Shetland about whether we could say that this procedure should mirror domestic legislation, I am arguing what I argued earlier the other way around. For the purposes of clarity, the Bill spells out the procedures, and the procedures mirror the domestic arrangements. He says that we should refer to the domestic provisions, and I argue that things are a lot clearer this way round. I am aware of what I said in an earlier debate, but the hon. Gentleman has reversed his position too. The policy is clear and it is clearly drafted. The circumstances are exactly the same. The procedures are sensible, logical and easy to understand. We are following the same procedures with regard to domestic warrants and it is reasonable to act in that way. I hope that the hon. Gentleman will withdraw his amendment, because it is nonsensical and detracts from our ability to tackle crime. 
 I turn now to the proposed amendments to clause 4 and the identical amendments to part 2. There is a requirement that a person be shown the warrant if he so requests as soon as possible after his arrest. We must bear in mind that that does not apply where he was shown the warrant at the time of his arrest. If having not seen the warrant on arrest and having been denied the right to see it after requesting it, the person would be entitled to be released. Amendments Nos. 17, 92, 130, 155 and 156 would place the onus of responsibility on the police to show the person the warrant, rather than the person having to ask to see it. That would be a departure from the current arrangements. We do not want extradition practice to be out of line with domestic provision, not least because any inadvertent failure to show the person the warrant would inevitably lead to his discharge.

John Burnett: As the Minister will know, there are few extradition cases every year. They are extremely sensitive and I should have thought that both
 amendments Nos. 129 and 130 are only fair and reasonable in the circumstances.

Bob Ainsworth: Let me move on to amendment Nos. 129 and 156, which go even further. They require the warrant, when it is shown to the person, to be in a language that he understands. The person would be entitled to legal counsel and, if necessary, to legal aid. He would have access to an interpreter if one were required by virtue of the Prosecution of Offences Act 1985. Under the amendment, it would be fine to show a person an incomprehensible warrant at the time of arrest, but if it were not available at that time, it would have to be translated word for word before it could be shown to him. That could cause a delay. It could prevent the warrant from being shown to him as soon as possible. Surely it would be in the interests of the individual that the warrant was shown to his legal counsel so that they could examine it, even in the unlikely event of there being some delay in translation.
 Let us take an extreme, but not impossible, example. If the details of the person were known in full apart from the language that he spoke, it could take a long time before he could be shown the warrant. The framework decision provides that European arrest warrants sent to the United Kingdom must be in English. Why not show the document to him in English, which will at least help his lawyer if the individual does not understand it, and provide interpretation if necessary? That would allow things to proceed in a sensible way. Furthermore, it is clear from the decisions required of the judge at the initial hearing and the extradition hearing that he would need to have a copy of the warrant before him to take any decision. 
 The framework mirrors domestic arrangements as closely as possible and ensures that people understand exactly what the warrant contains by virtue of the provision of interpretation and legal advice and aid. There is also a requirement on the judge to check that that situation is acceptable before the matter reaches court. 
 I think that we have covered the situation. I do not believe that there is any danger along the lines suggested by the hon. Member for Surrey Heath and I do not accept that we are entering a police state. If we are, we are already there and have been there for some time, because we gave constables powers of arrest without the immediate production of a warrant a very long time ago.

Nick Hawkins: The Minister says that these warrants are in the same category as warrants that we have been used to over the years, but they are not. The answer to his point is provided by the intervention from the hon. Member for Torridge and West Devon. We are talking only about a small number of people—about the maximum number of British citizens subject to requests for extradition. I think that the largest number of requests in recent years that was set out in the papers relating to the Bill was 116.
 These are very special provisions: the European arrest warrant is something entirely new. As a matter of principle, Opposition Members believe that the draconian powers that the Government are seeking to 
 introduce are entirely inappropriate when applied to anything other than terrorism, as I have said. As the provisions are very special, new and draconian, extra protection is needed for civil liberties. 
 That is why we agree with Justice, whose amendments have been tabled by the Liberal Democrats. Had they not tabled them, Conservative Members would have done so, because we think that it essential to protect our citizens—the people whom we are sent to Parliament to look after. They should have the opportunity to have copies of this special warrant, with the six pages of A4 and the boxes, in a language that they understand. 
 It is unacceptable to say that what we are debating is just like an arrest for a domestic burglary. The Minister may say, ''Every constable will need to have notice of every European arrest warrant that is outstanding,'' as if there will be thousands of them. However, in the special circumstances in which a foreign country asks British police officers to find someone and arrest them, they should have available to give to the suspect a copy of the warrant in a language that that person understands. That is a special and restricted circumstance.

George Howarth: I do not know whether the hon. Gentleman has had a chance to look at the briefing note provided by the commissioner's office in the Metropolitan police service. On what it calls the second key area, it states:
''These powers are welcomed by the MPS and we acknowledge the considerable value added to the fight against international crime which these powers permit.''
 The key quote is where it goes on to say: 
''In the main these are powers with which police officers are familiar and their existing domestic equivalents are well tested within domestic legislation.''
 The hon. Gentleman quoted Liberty. Does not he think that the Metropolitan police service may be just as good an authority on this matter as Liberty?

Nick Hawkins: I have seen that briefing and I entirely accept that the police would like to have the widest possible powers. However, I would have thought that Labour Members who, as the Liberal Democrats and my hon. Friend the Member for Stratford-on-Avon (Mr. Maples) said this morning, have a proud record of supporting civil liberties would be concerned to consider the massive extension of state power that the European arrest warrant constitutes. Labour Members should be saying that because this is something special that applies to a small category of people, the police should have protection for the subject before they execute a warrant. We are talking about perhaps 100 requests a year or thereabouts, not thousands.

Alistair Carmichael: That being the case, what the hon. Gentleman outlines would undoubtedly be best practice, but should failure to adhere to best practice necessarily be fatal to the warrant's execution?

Nick Hawkins: That undermines the hon. Gentleman's and Justice's amendments Nos. 129 and 130 as much as mine, because he argues for best practice, which his amendments would put in the Bill. I hope that the hon. Gentleman is not resiling from Justice's amendments. If the Minister were to say that
 the Bill would state that in all but wholly exceptional circumstances a warrant should be executed with a copy in the language of the person concerned, that would be a different matter. However, that is not what the Bill states. As drafted, the Bill gives the police unfettered powers.

Bob Ainsworth: I am not talking about exceptional circumstances. Surely the hon. Gentleman recognises that a constable could be going about his normal duties, could be involved in a road traffic incident and could come across a renowned international terrorist and not have the arrest warrant with him. Does the hon. Gentleman expect that terrorist to go free, because that is exactly what the amendment would allow?

Nick Hawkins: No, it is not, because what I and my right hon. Friend the Member for West Dorset said is that in the case of terrorism we are perfectly prepared to accept that there should be wholly exceptional powers. We made that clear on Second Reading and in Committee. Our amendments refer to the range of 32 crimes on the vague list in the European framework document. It is because that list is so wide that genuine protection for civil liberties is needed. We will not agree with the Minister on the matter, and I shall press the amendment to a Division.

John Burnett: It may help the Committee if I were to distinguish between amendment No. 130 and the Conservative amendment No. 17. We do not necessarily believe that the warrant should be available at the time of the arrest, but amendment No. 129 makes it clear that the warrant should be in a language that the defendant can understand. Amendment No. 130 provides for the warrant to be shown to the defendant as soon as practicable after the person's arrest. That seems entirely reasonable. It is also reasonable that there should be a translation of it available at that time as not only are these cases extremely sensitive, they are few and far between. The amendment would be in the interests of justice.
 The Minister said that legal aid and an interpreter will always be available. I wonder what he would say to us about information to the arrested person about the availability of legal representation, legal aid and interpreters. There must be minimum standards, so we shall divide the Committee on the amendments. I hope that Conservative Members will support the amendments, and I invite Labour Members to vote with us to ensure that the minimum standards of justice are available. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 9.

Question accordingly negatived. 
 Clause 3 ordered to stand part of the Bill

Clause 4 - Person arrested under Part 1 warrant

Amendment proposed: No. 129, in 
clause 4, page 2, line 34, before 'must', insert 'in a language he can understand'.—[Mr. Burnett.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived. 
 Amendment proposed: No. 130, in 
clause 4, page 2, line 35, leave out 'request' and insert 'arrest'.—[Mr. Burnett.]
 Question put, That the amendment be made:—
The Committee divided: Ayes 5, Noes 9.

Question accordingly negatived.

Nick Hawkins: I beg to move amendment No. 18, in
clause 4, page 2, line 36, leave out 'the appropriate' and insert 'a High Court'.

Anne Begg: With this it will be convenient to take the following amendments: No. 19, in
clause 4, page 3, line 2, leave out 'the appropriate' and insert 'a High Court'.
 No. 22, in 
clause 7, page 3, line 32, leave out 'the appropriate' and insert 'a High Court'.
 No. 25, in 
clause 7, page 4, line 5, leave out subsection (5).
 No. 26, in 
clause 7, page 4, line 8, leave out subsection (6).
 No. 27, in 
clause 7, page 4, line 14, leave out subsection (7).
 No. 30, in 
clause 9, page 5, line 7, leave out subsections (1), (2) and (3) and insert— 
 '( ) The judge shall have all the powers of a High Court judge in England, Wales and Northern Ireland, and the powers of an equivalent judge in Scotland.'
 No. 31, in 
clause 10, page 5, line 24, leave out 'the appropriate' and insert 'a High Court'.
 No. 38, in 
clause 27, page 11, line 12, leave out 'appropriate' and insert 'High Court'.
 No. 39, in 
clause 27, page 11, line 19, leave out 'appropriate' and insert 'High Court'.
 No. 46, in 
clause 35, page 15, line 24, leave out 'appropriate' and insert 'High Court'.
 No. 47, in 
clause 35, page 15, line 35, leave out 'appropriate' and insert 'High Court'. 
No. 48, in 
clause 37, page 17, line 1, leave out 'appropriate' and insert 'High Court'.
 No. 51, in 
clause 43, page 20, line 17, leave out 'appropriate' and insert 'High Court'.
 No. 53, in 
clause 44, page 21, line 14, leave out 'appropriate' and insert 'High Court'.
 No. 55, in 
clause 51, page 24, line 10, leave out 'appropriate' and insert 'High Court'.
 No. 58, in 
clause 54, page 25, line 27, leave out 'appropriate' and insert 'High Court'.
 No. 62, in 
clause 57, page 27, line 1, leave out 'the appropriate' and insert 'a High Court'.
 No. 66, in 
clause 60, page 28, line 37, leave out paragraph (a).
 No. 67, in 
clause 60, page 28, line 41, leave out subsection (3).

Nick Hawkins: We are talking about only a small number of cases, which we discussed in the previous debate on clause 3. We believe that there should be senior judicial scrutiny and intervention, and so tabled amendments Nos. 18 and 19. We also tabled consequential amendments to a raft of other clauses, which I do not need to go through as they are all to the same effect. We hope that the Government will at least consider the amendment. We suspect that others might make a similar point in another place, as those with senior judicial experience may have views about the matter, and we believe that there may be several concerns about the way in which the powers are to be used by the ''appropriate'' judge. The appropriate person should be a High Court judge; I need say no more than that.

Alistair Carmichael: It falls to me again to make the picky Scottish point. A judge of the High Court is a very different thing in Scotland than he or she is south of the border. The High Court of Justiciary, as it is properly known, is usually referred to in criminal legislation as a court of criminal jurisdiction, whereas I am told that a High Court judge in England and Wales
 is a civil court judge. In any event, my recollection from Second Reading, although I cannot lay my hands on the exact section, is that the hearings in Scotland are to be held before the sheriff of Lothian and Borders sitting in Edinburgh, who is not a judge of the High Court or indeed the High Court of Justiciary. The matters are complex, but I doubt it is necessary to take the time of one of the judges of the High Court of Justiciary of which there are only 22 or 23 in Scotland. While I appreciate the point made by the hon. Member for Surrey Heath point, I do not think it is helpful if these provisions are to be laid, as indeed they must be laid, as a piece of United Kingdom legislation.

Bob Ainsworth: We have simplified the process and yet the Opposition want to elevate the matter, right from the start, to the High Court. They would even have a High Court judge deciding whether the person brought before them was the right one. It gets even more absurd. Currently about 30 per cent. of fugitives consent to their extradition. The Opposition amendments want to make it certain that they can do that only in front of a High Court judge, taking up High Court time even when there is no dispute.
 The Bill makes it clear what the judge must consider before he consents to extradition. If the request falls foul of any of the bars to extradition, it must be refused. If the judge decides that there is a risk that the person's human rights could be breached, extradition must be refused. The criteria to be considered are clear and would be the same whether a High Court judge or district judge were considering them. 
 Terrorist crimes are obviously serious matters but district judges at Bow street magistrates court have dealt with them for a long time. I am confident that they will be able to continue to do so. Their decisions can be challenged in the High Court and, with permission, in the House of Lords. 
 As I said, there are flaws in the current extradition system but I do not believe that the seniority of the judges that deal with them is as big an issue or that there is any justification for the amendments. I ask the Committee to reject them.

Nick Hawkins: I did not expect the Minister suddenly to agree to our proposals, but I remind him that we are talking about a new kind of procedure. The European arrest warrant is a major departure. We are talking about a small number of requests each year. It seems appropriate, particularly when some of the problems of extradition cases have taken up the time of the superior courts—we talked this morning about the Pinochet case having to go up to the House of Lords not once but twice—and when we are talking about a massive extension in the law and erosion of our civil liberties, that a High Court judge should consider these matters.
 I accept entirely the strictures of the hon. Member for Orkney and Shetland about Scotland, but it would be difficult for me to draft detailed amendments about the difference between the High Court and the High Court of Justiciary in Scotland because I do not have the knowledge. I am glad that there is something called a High Court judge who would be one of 26 or 27 who could consider this. Given that we would be talking 
 about criminal cases, perhaps it would be appropriate for a High Court of Justiciary criminal judge to consider them north of the border. 
 Because of the seriousness of the proposed extension of the powers, we felt it important to provide that a High Court judge should examine these cases. We remain of that view and I want to put the matter to a vote. 
 Question put, That the amendment be made:—
The Committee divided: Ayes 3, Noes 11.

Question accordingly negatived. 
 Clause 4 ordered to stand part of the Bill.

Clause 5 - Provisional arrest

Question proposed, That clause 5 stand part of the Bill.

Nick Hawkins: I want to make only a brief comment about a concern that we share with others, including Leolin Price QC. Clause 5 provides for an arrest even when a European arrest warrant has not been issued. Like Leolin Price, we question why there should be a power to arrest because the arresting person ''has reason to believe'' that an arrest warrant ''has been or will be'' issued in another member state. The phrase ''or will be'' causes particular mischief because it is extraordinary that such draconian powers should be based on an arresting person's belief, however reasonable, of something that does not exist. The person exposed to arrest in such circumstances will not be able to judge whether the arresting person has reason to believe, and the arresting person will be unable to inform the arrested person of the European arrest warrant or its contents because there will not be one. As we said earlier, article 11 of the framework decision clearly refers to all the circumstances of the warrant being set out to the arrested person. Clearly, that cannot happen if an arrest warrant does not exist.
 Once again, the proposal seems to be a massive and unjustified extension of the powers of the state. As Leolin Price puts it, it is 
''an astonishingly novel procedure: arrest for deportation, without ordinary extradition protections, for investigation and trial of an alleged offence in a foreign country under an alien and unfamiliar system of law. Clause 5 can properly be categorised as outrageous.''
 The Conservatives say, ''Hear, hear'' to that. It is absolutely outrageous. I had thought about tabling amendments to delete the words ''or will be'', but clause 5 is such an anathema as it is drafted that our only sensible course of action is to vote against it.

Alistair Carmichael: The Liberal Democrats take exactly the same view, and I thoroughly resist any suggestion that we just did not get round to drafting an amendment. We must regard the clause in the full context of what has preceded it. It is difficult to imagine circumstances in which a constable or appropriate person might be aware that someone in another jurisdiction was going to issue an arrest warrant. What would happen if that person were arrested but, for whatever reason, the warrant was subsequently not issued or it was found out that it had not been appropriate for the warrant to be certified? As the hon. Member for Surrey Heath said, the clause goes too far, and I adopt his outrage without reservation.

Bob Ainsworth: Would it be in order for me to ask whether the Leo Price who has been continually quoted is the same Leo Price who is trying to raise money to challenge the legality of our membership of the European Union? How much has he managed to raise, and how much has the hon. Member for Surrey Heath contributed to his campaign? I feel certain, having listened to the extensive quotations, that it is the same person.
 Provisional arrest is needed in some circumstances, and I do not think that they are difficult to imagine. They are provided for in the Extradition Act 1989—introduced when the party of the hon. Member for Surrey Heath was in power—and the circumstances are straightforward. I will not use a terrorist as an example, because it seems that the hon. Member for Surrey Heath does not mind what we do to terrorists. Let us say that a mass murderer jumps on an aeroplane and is heading for Heathrow, and that the aeroplane will arrive before the warrant. The hon. Gentleman is effectively suggesting that that person should go free, that a mass murderer should be allowed to walk around the streets of Britain. That is nonsense, and is a departure from our current extradition arrangements. He should be ashamed of himself for raising it. 
 Question put, That the clause stand part of the Bill:—
The Committee divided: Ayes 9, Noes 4.

Question accordingly agreed to. 
 Clause 5 ordered to stand part of the Bill.

Clause 6 - Person arrested under section 5

Question proposed, That the clause stand part of the Bill.

Nick Hawkins: I do not wish to spend much time discussing this clause. However, some external organisations have suggested that the required period should be shorter than 48 hours, thus exerting more pressure in the exceptional circumstances of clause 5, which we have already said goes too far. Section 6 rows back to some extent in that it provides a degree of protection.
 I did not believe it necessary to table a separate amendment seeking to shorten the period, given that we were objecting to the whole of clause 5 on principle, but I wanted to raise the point in the stand part debate on clause 6 to elicit the Minister's response.

Bob Ainsworth: The clause stipulates that the person must be brought before an appropriate judge—a district judge or the equivalent—within 48 hours. The relevant certified part 1 warrant must be produced for the judge at that hearing, and if either condition is not met, the person must be discharged.
 The second function of the clause is to ensure that the person can be legally detained for the period between his arrest and the initial hearing. That is a necessary precaution to ensure that the person can be held for a brief period after his arrest. I do not see the need to shorten the 48-hour period, although I can see that difficulties might arise in some circumstances. However, I ask the Committee to accept that that is a reasonable period to require as a maximum. 
 Question put and agreed to. 
 Clause 6 ordered to stand part of the Bill.

Clause 7 - Identity of person arrested

John Burnett: I beg to move amendment No. 132, in
clause 7, page 3, line 39, at end insert: 
 '(2A) For the purposes of subsection (2) above, the burden of proving the person's identity so that the judge is sure is on the prosecution.'.
 Our amendment seeks clarification. We are dealing with individuals who will be in an alien environment in this country and who will often be confused and unfamiliar with the language. 
 Certainty about the identity of the arrested person is crucial. The amendment seeks to ensure, beyond all doubt, that the burden of proving a person's identity is on the prosecution. As currently drafted, clause 7 contains no specification of the evidential standard required, or of where the burden of proof lies in determining the identity of the accused. In the interests of the Bill and of justice, it is important to clarify the position. I look forward to hearing with whom the Minister believes the crucial burden of proof to lie, and why.

Bob Ainsworth: The simple answer is the judge. As clearly laid out in subsection (2),
''The judge must decide whether the person brought before him is the person in respect of whom''
 the warrant was issued. That is pretty clear. The judge would have to arbitrate in any dispute over identity between the two interested parties. I do not see how 
 the amendment provides the judge with any assistance in taking the decision.

Nick Hawkins: I am aware that Justice suggested the Liberal-Democrat amendment and we also support it. Surely the amendment is designed to make it clear that the burden lies on the prosecution to satisfy the judge that the judgment is sure. In other words, it would build into the Bill the normal standard and burden of proof and lay it squarely on the prosecution. How can it do any harm to build that provision into the Bill, as Justice suggests?

Bob Ainsworth: Let us get this right: there is no prosecution. We are talking about extradition cases. Is the hon. Gentleman talking about the state issuing the arrest warrant? Let us take the example of Sweden. Within 48 hours, it would have to prove to the satisfaction of the judge that the person brought by the British police is the person stipulated in the warrant. The judge will decide whether it is the appropriate person, as he does now and as he always has done under extradition law. Absolutely no change is being made.

John Burnett: Does the Minister concede that it is crucial that the identity of the person is established in these proceedings? Does he accept that ensuring that the person identified in the warrant stands before the judge is one of the most crucial aspects of the Bill?

Bob Ainsworth: It is. The hon. Gentleman should read subsection (3):
''If the judge decides the question in subsection (2) in the negative he must order the person's discharge.''
 The questions in subsection (2) include the issue of the person's identity. If the judge decides that it is not the right person, he must order his discharge. That is how it happens now and there is no doubt about it. The judge must satisfy himself as to the identity of those brought before him. If he is not satisfied and doubts whether it is the right person, he must order his discharge.

John Burnett: I am interested to hear the Minister say that if the judge has any doubt whatever about identity, he must order the person's discharge. It is important to have that important point on the record. However, does the Minister agree that the sort of procedure envisaged is far more familiar to other jurisdictions—similar to the role of an investigating magistrate, for example, which is completely unknown to the United Kingdom?

Bob Ainsworth: My advice is that identity is practically never an issue in extradition cases. Whenever an extradition request is made at present, the person is brought before the Bow street magistrates court, which must, among other things, decide whether it is the right person. The Bill's requirement for the judge to decide on the right person is absolute. There is no prosecution, only the issuing state and the police who effected the arrest. It would be for the police to show who the person is and for the judge to satisfy himself that it is the correct person, and if he is not satisfied to discharge the individual. The situation is very clear.

Alistair Carmichael: It is all very well for the Minister to say that there is no prosecution, but the Minister will have regard to subsections (5) and (6) in which it is indicated that the power of the judge is akin to those in a magistrates court if proceedings were a summary trial, or, in Scotland, if they were summary proceedings. It might not be a prosecution, but clearly it is not a kick in the pants away from it. From the practical point of view, the first question that the judge or the sheriff will ask the person who is brought before them is ''Are you so and so?'' Thereafter, if there is any dispute about that point, it is for the prosecution to adduce evidence that that is the person who has been brought before the court. That is the procedure as I understand it in summary proceedings and those rules of the procedure would apply under the Bill.

Bob Ainsworth: The hon. Gentleman is beyond satisfying. We have even used the form of words that he was proposing earlier. The powers will be
''as nearly as may be the same as if the proceedings were summary proceedings''.
 That is what he asked for a few minutes ago in relation to another issue. Is he saying that if a person appears before a magistrates court and remains silent, someone has to prove beyond all reasonable doubt that that person is the person on the arrest warrant or must be discharged? Who does he expect to prove that at that initial hearing?

Alistair Carmichael: It is clear from the amendment that we expect the prosecution to prove that. We propose something for the avoidance of doubt, in exactly the same way as the Minister brought forward clause 3(2)(3) for the avoidance of doubt.

Bob Ainsworth: I keep saying that there is not a prosecution at this stage. A foreign jurisdiction—another European Union country—has issued an arrest warrant. That has probably been placed on the Schengen information system. Let us say that in most of the cases the police are aware of the person's whereabouts. They know that they seek the hon. Member for Orkney and Shetland and that they can catch him here during the reasonable modernised hours of the House of Commons. They come along to arrest him and take to the Bow street magistrates court.
 It is for the judge to be satisfied that the hon. Gentleman is the hon. Gentleman. If he is not, he should release him. Who does he expect to prove it and what level of proof does he expect the judge will need to satisfy himself if the hon. Gentleman flatly refuses to identify himself and to say nothing at all? Who does he expect will prove that person's identity? There is no prosecution. There is a warrant. The British police force have carried out their duty in the normal way as they would by arresting the person they thought was the appropriate person and bringing him in front of the courts.

Alistair Carmichael: The Bill draws a parallel with summary proceedings. In summary proceedings the person who is accused of an offence is asked: ''Are you Alexander Morrison Carmichael?'' That is the name that appears on the complaint along with the address
 and date of birth. The answer to that is yes, in my case. The rules of procedure under summary proceedings are held to be satisfied as proof beyond reasonable doubt. The fact that the person in the dock is the person who is named on the complaint in summary proceedings has to be proved beyond reasonable doubt. That is part of the charge. In that case, if there is a challenge to that and I say, ''No, I am not Alexander Carmichael, I am Jim Wallace'', it is for the prosecution to bring forward evidence, such as fingerprint or identification evidence. That may be very unusual, but it is by no means unknown, and under the Liberal Democrat amendment, the burden would be on the prosecution to present evidence.

Bob Ainsworth: I thank the hon. Gentleman. I am trying to understand whether there is an issue of principle here. The provision says that
''the judge has the same powers (as nearly as may be)''.
 If that is what the hon. Gentleman says the situation is, as nearly as may be means that the same circumstances would apply to what we are discussing.

Nick Hawkins: I wonder how we can resolve the confusion. Justice and the Liberal Democrats wish to insert the word ''prosecution'', but we are surely talking about the British state bringing the person before the court at the request of the requesting nation. I do not blame the Liberal Democrats, because they adopted the wording proposed by Justice, but perhaps it would have been better to have separate clauses, one saying that the burden was on the state and the other saying that the standard of proof should be the normal one that we are used to expressing in criminal proceedings, that is: ''satisfied so the judge is sure''. Separate clauses without the word ''prosecution'' might have been clearer and would have achieved, with the support of the Conservatives, what Justice and the Liberal Democrats suggest.
 I do not want the Minister to get too hung up on the fact that there is not technically a prosecution. We are talking about the burden being on the UK Government in executing a European arrest warrant and bringing someone before the courts at the request of a requesting state.

Bob Ainsworth: That may be helpful. The hon. Gentleman says that the judge must be satisfied so that he is sure. If it is acceptable to hon. Members, we will leave it at that. I will try to consider the matter and to ensure that hon. Members are satisfied that an appropriate identification is required and that there is no risk that the wrong people will be shipped off to foreign jurisdictions. I shall reflect on that and may come back to the Committee.

John Burnett: I am grateful. The fact that the Minister is prepared to debate in this way is a great credit to him. To sum up our short debate on amendment No. 132, the fact that identity is practically never an issue, as he said at the start, is immaterial. It may be a matter of doubt, and where it is, it falls on a person to make the case to prove something beyond all reasonable doubt. I am glad that
 the Minister recognises that. Having heard what he said, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Alistair Carmichael: I seek clarification on a couple of points relating to remaining provisions in clause 7. First, with regard to subsection (6)(b), why is there no requirement for corroboration, which is fundamental to a summary prosecution under Scots law? I see no reason why the requirement for corroboration should be removed for these the proceedings.
 Secondly, subsections (8) and (9) are rather inelegantly drafted. Surely it would be preferable to give the judge discretion on the question of bail in the first instance. The Committee will see that if the judge exercises his power to adjourn proceedings, he must remand the person in custody or on bail—[Interruption.] I am sorry; I had misread that. I withdraw that remark. 
 However, it would be useful if there were greater clarification of the circumstances in which bail might be considered under subsection (9).

Bob Ainsworth: It is utterly outrageous that the hon. Gentleman should accuse me of inelegance. I have never been accused of that before.
 I hope that subsection (9) is clear: it gives the judge discretion. If he decides to remand a person in custody he can return to that decision and change his mind. As to the hon. Gentleman's point about corroboration in subsection (6)(b), unless something pops into my mind in the next few seconds, I do not have the faintest idea of an answer. I will check it out and come back to him if it is important. I do not know what he is talking about, to be sure. 
 Question put and agreed to. 
 Clause 7 ordered to stand part of the Bill.

Clause 8 - Remand etc.

Nick Hawkins: I beg to move amendment No. 28, in
clause 8, page 4, line 23, leave out paragraph (b) and insert— 
 '(b) ensure that the person has received independent legal advice about his rights as to giving or withholding consent to extradition'.

Anne Begg: With this we may take the following amendments:
 No. 29, in 
clause 8, page 4, line 26, leave out subsection (3).
 No. 119, in 
clause 8, page 4, line 31, leave out paragraph (c) and insert— 
 '(c) that consent must be given before the judge who must satisfy himself that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.'.
 No. 52, in 
clause 44, page 21, line 7, at end insert 'as long as he has received independent legal advice prior to indicating his consent'.
 No. 54, in 
clause 44, page 21, line 14, at end insert 'only after having received independent legal advice'.
 No. 146, in 
clause 44, page 21, line 16, at end add— 
 '(5) The judge before whom consent is given must be satisfied that— 
 (a) the person before him has been informed of his right to free legal advice and has understood that information, and 
 (b) that access to such legal advice was made available to him.'.
 No. 157, in 
clause 73, page 37, line 40, leave out paragraph (a) and insert— 
 '(a) ensure that the person has received independent legal advice about his rights as to giving or withholding consent to extradition'.
 No. 158, in 
clause 73, page 37, line 42, leave out subsection (7).
 No. 162, in 
clause 123, page 61, line 13, leave out 'irrevocable' and insert 'only valid after the person has had an opportunity to receive independent legal advice, and can be revoked at any time until extradition takes place'.

Nick Hawkins: Amendments Nos. 28 and 29 would ensure that the Bill guarantees that the person who is the subject of the new powers can receive independent legal advice. The amendments would also delete the inappropriate provisions about consent, which is taken far too readily. Amendment No. 119, tabled by the Liberal Democrats, would have a not dissimilar effect. It states that
''consent must be given before the judge who must satisfy himself that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''
 That, too, is the preferred wording of Justice. If I had had the advantage of seeing that before drafting amendment No. 28, I might have gone along with it. No doubt the hon. Members for Torridge and West Devon and for Orkney and Shetland will confirm that amendment No. 119 takes a similar direction to amendment No. 28. Each of us is trying to ensure that a suspect has independent legal advice before giving or withholding consent to extradition. 
 In an earlier debate, the Minister said that about 30 per cent. of people currently extradited consent to it. In discussing these new, much more wide-ranging powers, it is important that we ensure that independent legal advice is available to a person before he or she gives or withholds consent to extradition. The Liberal Democrats' amendment No. 133 goes further and would provide for free legal advice. We have not gone as far as that; we believe it more important that legal advice be independent than that it be free. No doubt the Liberal Democrats will seek to justify their proposals in their own way. However, we are all moving in a similar direction; a necessary pre-condition before someone gives consent to being extradited and deported to another country is that they should have the benefit of independent legal advice. The other amendments in the group are consequential.

Alistair Carmichael: I shall speak briefly to amendment No. 119. The position is straightforward: in practice, independent and free legal advice will be given by the duty solicitor under the legal aid scheme. As my hon. Friend the Member for Torridge and West Devon
 said, that will be dealt with in a later amendment. The point has been made that the proceedings are akin to summary proceedings; a person appealing from custody or summary proceedings is always entitled to the services of the duty solicitor under the legal aid scheme and I see no reason why the Government should object to it in this case.

Bob Ainsworth: Every person arrested in an extradition case has the same entitlements as those arrested for purely domestic cases to independent legal advice. The duty solicitor scheme is designed to ensure that such advice is available before the first court appearance. In extradition cases, legal aid is available before the fugitive has the opportunity to consent to extradition. As an added safeguard, the district judge is required to explain to the fugitive the effect of consenting to his extradition and the fact that consent, once given, cannot be rescinded.
 It is unprecedented to require a judge to check on the nature of the legal advice that a person before him has received. The Opposition amendments would require that the judge be satisfied that the fugitive has actually received that advice. Unintentionally, the amendments would make it impossible to conclude an extradition case in which a defendant refused to speak or to take the legal advice of a lawyer. Unless the judge is satisfied that the person has received legal advice, he could not proceed under clause 8, and the whole extradition process would grind to a halt.

Alistair Carmichael: Under amendment No. 119, the judge has to satisfy himself only
''that the suspect has had the opportunity of receiving independent legal advice and had opportunity to consider that advice.''
 If the accused person refused to avail himself of that advice, it would not be a barrier.

Nick Hawkins: Before the Minister responds, I want to make it clear that I tabled my amendments before I saw the wording recommended by Justice. Had I seen that wording, I might well have adopted it. I hope that the Minister will view the amendments in that light and not get hung up about the way the different Opposition amendments are worded. I agree entirely with the hon. Member for Orkney and Shetland.

Bob Ainsworth: Hon. Members know that the opportunity must be afforded for a fugitive to have legal advice. For extradition fugitives, legal aid also has to be afforded. That is a requirement, so I do not really see the hon. Gentleman's point.

Alistair Carmichael: I am focusing on the practicalities. If we are talking about Edinburgh sheriff court on a Monday morning, the services of the duty legal aid solicitors are pretty thinly spread and it is by no means unusual for cases to be called before the accused have had the opportunity of speaking to a solicitor. Many people may not be familiar with court proceedings in this country or with the language. They may not expect the right to free and independent legal advice before a court hearing. It is surely an important and necessary safeguard to place a burden on the judge to ensure that all the appropriate proceedings have been gone through before the case is dealt with.

Bob Ainsworth: As a matter of principle, no one in this Committee wants anyone to find themselves in front of a district judge faced with extradition to another country without having had the opportunity of receiving legal advice. I am more than happy to assure the hon. Gentleman that I shall re-examine the provisions to make absolutely sure that that cannot happen. I hope that that will satisfy Opposition Members at least about some of the amendments.
 Amendment No. 162 would introduce the additional notion that consent can be revoked at any point. We know that fugitives actively try to manipulate the extradition system and this would give them a wonderful opportunity to achieve maximum disruption. A fugitive may have given consent in front of a judge, but just when he is about to be put on a plane, he could change his mind and go back through it all again. As the amendment is currently worded, a fugitive could do so again and again. That might be wonderful for taxi services between here and the Heathrow or City airports, but it would not do much for our ability to extradite criminals under the European arrest warrant scheme. I ask hon. Members to think again about amendment No. 162. 
 I will check to ensure that individuals standing before a judge cannot face the danger of consenting to their extradition without having had the opportunity to receive legal advice, which would be pretty rough.

Nick Hawkins: As usual, the Minister is being reasonable in undertaking to re-examine the various formulations, including that of Justice, which might avoid at least one of the difficulties to which he referred. I am grateful to the Minister for agreeing to reflect further with his advisers on this serious matter, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

John Burnett: I beg to move amendment No. 134, in
clause 8, page 4, line 38, at end insert— 
 '(5A) Where an application is made to extend time limits under subsection 5, the judge must hear representations from all parties before reaching a decision.'.

Anne Begg: With this we may take amendment No. 135, in
clause 8, page 4, line 40, at end insert— 
 '(6A) Any decision to extend time limits taken under subsections 5 and 6 must be subject to review.'.

John Burnett: I do not need to dwell too long on these amendments, which are also based on the advice of Justice. They are designed to import an element of fairness and even-handedness into the Bill. During the past half hour, my hon. Friend the Member for Orkney and Shetland and I have been impressed with the tenor of the Minister's arguments. I hope that he will understand that the amendments are all about ensuring that justice is properly done.
 The clause allows an unfettered discretion to extend time limits at the request of one of the parties without any need for representations from the other party and without any possibility of judicial review. Justice and the Liberal Democrats agree—I hope that 
 Conservative Members will join us—that the right to make representations is crucial when any decision affecting a person's right to liberty is at stake. Extensions of time limits should be inter partes and decisions should be subject to review. When individuals stand in jeopardy of losing their liberty, time limits are crucial, and it is only fair that if the state has made recommendations, the individual should be able to make them and be party to the proceedings. 
 In addition, we want to engraft a further protection of the right to judicial review. I hope that we can win the Minister over—he is in a fair frame of mind—on these two important amendments.

Nick Hawkins: I need say no more than that we agree entirely, as he anticipated, with the hon. Member for Torridge and West Devon.

Alistair Carmichael: Can the Minister confirm—today or later—that, as we are dealing with summary proceedings, or something very close to them, a person remanded under these proceedings in Scotland will be subject to the 40-day time limit that is in force for summary complaints in Scotland.

Bob Ainsworth: The judge is required to set a date within 21 days of arrest for the extradition hearing to start. However, in exceptional circumstances and at the request of either side, he may set a later date. Amendment No. 134 would require the judge to hear arguments from both sides when deciding whether to set a later date. However, that is already standard practice in all judicial processes, and a judge would not be prepared to listen to an exceptional plea for an extension without giving the other side the opportunity to question whether that was necessary. Were that not the case, I would possibly side with the hon. Member for Torridge and West Devon to say that the amendment were necessary, as the whole point of the Extradition Bill is to speed up our extradition processes. We do not want unnecessary delays, but it is standard practice that when such requests are made, the judge asks the other side to comment on the proposal.
 Amendment No. 135, on the other hand, would require that such a decision should be subject to review. It would not be optional, so if even a short delay were agreed, the decision would have to be reviewed. I hope that the hon. Member for Torridge and West Devon accepts that that is a matter for the discretion of the judge presiding over the case. Exceptional circumstances will have to be presented to him in deciding whether to extend the deadline and what extension would be reasonable. He will grant only extensions that he considers reasonable and will review those decisions if he thinks that it is sensible to do so. It is far better to leave it in that setting than to provide that there must be a review.

John Burnett: I will not argue the toss with the Minister on the detailed drafting of amendment No. 135. However, will he put it on the record that he believes that a right of judicial review will exist in the circumstances outlined in amendment No. 135? Will he confirm not that a judicial review must happen, but
 that the right to it is available should either party want it?

Bob Ainsworth: There is a right to a judicial review of a judge's decision. Time limits exist and may be extended in exceptional circumstances. The case for that would have to be made to a judge, who would then decide whether the case was reasonable, having given the other side the opportunity to suggest that it was not. Automatic judicial review is neither necessary nor appropriate.
 I will have to write to the hon. Member for Orkney and Shetland on his point.

John Burnett: Initially, I shall refer only to amendment No. 134. I understand that Minister's comment, which seems to be to the effect that the amendment is otiose because in accordance with the principles of natural justice, both parties must have a right to be heard. I hope that I understand the Minister correctly—is he nodding?

Bob Ainsworth: Yes. My argument is that the amendment is otiose. Consulting both sides is standard practice and will continue to be so.
Mr. John Maples (Stratford-on-Avon) rose—

John Burnett: I am happy to give way to the hon. Gentleman as well.

John Maples: One aspect of the amendment troubles me. There are occasional emergencies in court cases where it is necessary for one party to make an ex parte application. The judge should be able to adjourn a hearing at the instigation of one party where it has not been possible and there has not been time to serve a notice on the other party, which would be necessary if both were to be heard. Obviously, the judge would want to hear both parties before he made a final decision. However, there is a danger that the amendment would make such ex parte applications impossible in emergencies. That might be to the detriment of the person whose extradition was being sought, because he or she might be the one to be seeking to make an ex parte application.

John Burnett: I take the hon. Gentleman's point. All that I require from the Minister is confirmation that both parties are aware and have a right to make representations before the judge draws a final conclusion.
 On amendment No. 135 and the issue of review, will the Minister confirm that there will at least be a right of appeal if a point of law is at issue?

Bob Ainsworth: In exceptional circumstances, there is a right of appeal against a decision to extend the time limit. These are standard practices, which are best left to the judge. Except in exceptional circumstances, the time limit of 21 days should be adhered to. Either side is entitled to argue that it needs an extension. It is for the judge to satisfy himself that justice is being done and that there is adequate opportunity to listen to arguments against that extension. That is standard practice, and we should have confidence in it. We should not try to stipulate that there should, or should not be, a judicial review. It is beyond my comprehension how we can have an appeal against
 the decision to have a short extension to the time limit. I do not see how that would work.

John Burnett: I would be grateful if the Minister would deal with our point about amendment No. 134 and make his views on equality of representation absolutely clear.

Bob Ainsworth: I have said what I have said.

John Burnett: In that case, I do not believe that the Minister has said that it is standard practice and that a decision cannot be made without both parties having had the opportunity to make representations. On that basis, and on the basis of the Minister's assurance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 8 ordered to stand part of the Bill. 
 Clauses 9 and 10 ordered to stand part of the Bill.

Clause 11 - Bars to extradition

Nick Hawkins: I beg to move amendment No. 151, in
clause 11, page 5, line 39, at end insert '.

Anne Begg: With this it will be convenient to take the following amendments: No. 152, in
clause 11, page 6, line 2, at end insert '; 
 (i) the legal interpretation of the territory in which the offences were committed'. 
New clause 1—Passage of time— 
'A person's extradition to a Category 1 territory is barred by reason of the passage of time if it appears it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large (as the case may be).'
 New clause 2—Territorial bar— 
'A person's extradition to a Category 1 territory is barred where the warrant relates to offences which— 
 (a) are regarded by the law of the relevant part of the UK as having been committed in whole or in part in the territory of the UK or in a place treated as such; or 
 (b) have been committed outside the territory of the Category 1 territory and the law of the relevant part of the UK does not allow prosecution for the same offences when committed outside its territory.'

Nick Hawkins: This is simply a paving amendment to bring new clause 1 into order with this clause. It seeks to provide a safety net. Outside organisations have rightly drawn attention to the fact that the Bill does not give ultimate protection of the subject, even in a case in which extradition would be considered unjust or oppressive. New clause 1 proposes that a person's extradition to a category 1 territory should be
''barred by reason of the passage of time if it appears that it would be unjust or oppressive or not proportional in all the circumstances to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence or since he is alleged to have become unlawfully at large.''
 I will listen with interest to what the Minister has to say about that. I hope that he will concede that there should be some ultimate underpinning of the wide-ranging new powers so that there could be an argument about injustice or oppression because of 
 the lapse of a huge length of time. That is particularly important because some of the offences mentioned in part 1 are very vague. 
 If we were discussing terrorism or the most serious sorts of crime and only those crimes were covered by part 1—we believe that part 1 provisions are appropriate only to terrorist offences—the situation might be different. We are, however, discussing a wide range of offences, some of which are not known to English law, and it therefore seems to us that there should be an ultimate safeguard.

Bob Ainsworth: None of us wants extradition to take place in circumstances that would be unjust to the fugitive. The Bill provides a number of important safeguards to ensure that that does not happen. In this case, the key safeguard is clause 21, which sets out the protection given by the European convention on human rights. If extradition would breach a fugitive's rights under the convention, it cannot take place.
 I am confident that that would apply in practice. A person's representative would be able to advance an argument that the passage of time had made extradition unjust, and the district judge would be able to consider the matter and satisfy himself as to whether the extradition should be ruled out because of the passage of time. That matter is covered by the ECHR provision, and the ability to make that argument is contained in the Bill.

Nick Hawkins: I shall express some surprise, because I had assumed that, when I sat down, someone from the Liberal Democrats would move their new clause 2 and paving amendment No. 152.
 Perhaps, by talking for a little while, I will give the two Liberal Democrat spokesmen the opportunity to look at their amendments and to see whether they want to talk about later, assuming that they succeed in persuading you, Miss Begg, to allow them to do so. 
 I am not prepared to see the matter provided for by the ECHR alone. The ultimate safeguard should be included in the Bill, and many external organisations also want to see that happen. From the moderate and reasonable way in which the Minister responded to me, I do not believe that he is averse to that idea. May I therefore ask him to confirm—and I am happy to give way for him to do so—that he will examine our submissions, and those that he and his officials have received from external organisations, and to contemplate the possibility of introducing something along those lines. Our own wording is not sacrosanct, but I want something in the Bill to specify the kind of protection that the Minister has said is already included.

Bob Ainsworth: I was waiting to see whether the hon. Gentleman would raise that issue. He is obviously so content with part 2 that he has not noticed that it contains provisions on time bars. However, I will consider whether it would be appropriate to mirror those provisions in part 1, although I am certain that the point is already covered, and that the argument could be made.
 I do not think that we would make any difference by incorporating what is in part 2 into part. Nor would it make any difference to leave things as they stand. I am therefore more than happy to consider the matter, as the hon. Gentleman requested.

Nick Hawkins: I am grateful. The Minister makes the point that these amendments seek to introduce what is in part 2 into the part 1 provisions. The wording is effectively the Government's own wording from part 2. That is why we and other organisations have said that it should be there. I am grateful that the Minister is going to consider that. Perhaps if I sit down this time, the hon. Member for Orkney and Shetland will belatedly speak to his amendments. I may have the opportunity, if I am lucky, to comment on them.

Alistair Carmichael: My hon. Friend the Member for Torridge and West Devon and I had rather got ahead of ourselves and were divvying up responsibility for subsequent clauses. We had assumed, as normally would be the case, that the hon. Member for Surrey Heath would be talking for some time to come. We were caught napping by his brevity, and I apologise to the Committee for that.
 New clause 2 is fairly straightforward. It speaks for itself. On paragraph (a), it would be nonsensical to extradite someone where the locus of the offence was part of the United Kingdom, in whatever circumstances that might arise. The obvious example would be within the territorial waters of the UK. On paragraph (b), there is an element of double actionability or dual criminality. If the offence has been committed outside the category 1 territory, it would be extraditable only if we were competent to prosecute in this country an offence that was committed furth of our jurisdiction, which places it in a very rare category of offences. I do not know whether my hon. Friend the Member for Torridge and West Devon has any further illumination for the Committee.

John Burnett: As my hon. Friend said, we were somewhat wrong footed. We were relying on the hon. Member for Surrey Heath.
 The new clause has been suggested by Justice and is extremely important. The abolition of the dual criminality requirement in relation to the 32 serious offences contained in article 2.2 of the European arrest warrant means that a request for extradition under the European arrest warrant need not be based on an offence known to UK law. Thus, if a request were made on the basis of an offence in another member state, which is not an offence in the UK, a defendant would lose the protection of the rule against double jeopardy using the proposed text in the Bill. I presume that that is not the Government's intention. The European arrest warrant clearly states that a final judgment on the same acts shall be a mandatory bar to surrender. Implementing legislation should reflect that broader notion of double jeopardy in order effectively to protect the rights of individuals. I look forward to hearing the Minister's comments.

Bob Ainsworth: The hon. Gentleman is fortunate to have got his act together in time. He is indebted to the
 hon. Member for Surrey Heath for holding up the proceedings to enable him to do so.
 The effect of new clause 2 is twofold. It would prevent extradition where any part of the offence occurred in the United Kingdom and in cases where the offence occurred outside the requesting state but for which the UK would not claim extra-territorial jurisdiction. It would be wrong to preclude extradition simply because some part of the offence occurred in the UK. Naturally, where the substantive part of a crime occurs in the UK we would want to prosecute the perpetrator. But it is possible to foresee circumstances in which the minor part of a crime, such as some of the preparation for it, takes place in the UK, and the major criminal activity takes place in the other, part 1 country. Crime is becoming more international. I do not believe that Opposition Members want to rule out extradition, and the other country would have a far stronger case to prosecute than the UK would. 
 A practical example may help. In a complicated computer fraud, a single e-mail that formed part of it could have been sent from the UK, notwithstanding the fact that every other part of the crime took place in France and the victims were all French. However, the proposed change would oblige us to refuse the extradition request. Surely that cannot be right. 
 The second leg of the new clause would mean that we did not extradite in cases in which the offence occurred in a third country, but the offence was not one for which the UK would take extraterritorial jurisdiction. That could create problems. Germany, for instance, takes jurisdiction over anything done by its citizens. It would therefore take jurisdiction over a German who beat someone up while on holiday in France and then fled to the UK. Obviously, the French would have an interest in prosecuting the case, but if the victim were also a German, it might make more sense for the Germans to pursue it. All the witnesses would have returned to Germany, and the hearing could be conducted there. 
 Clause 63(5) would allow the Germans to extradite the German suspect from the UK, but under the Liberal Democrat amendment, because we do not take extraterritorial jurisdiction over the offence of grievous bodily harm, we would be unable to do so. People should not be able to evade justice simply because they cross the border between different jurisdictions. 
 I hope that the hon. Gentleman accepts that there are good reasons not to accept the new clause. Incidentally, I shall be extra careful in listening to the interpretations that he places on what I have said—I am sure that Hansard will be, too—because he seems to go a bit beyond it on the odd occasion. He seems to infer that I have said things that in fact I have been very careful not to say.

John Burnett: I note that the Minister is smiling ruefully. Of course I shall take note of what he has said on this matter as well as the assurances that he has given us on many others. We shall study Hansard carefully. I have noted in particular what he says about
 the new clause. We shall consider his words carefully and we may return to the matter on Report.

Nick Hawkins: Now that we have, slightly belatedly, reached the debate on the Liberal Democrat new clause, I should say that Conservative Members share the concerns expressed by Justice and the Liberal Democrats in this respect. We, too, will consider what the Minister said about our new clause and will not press it to a vote at this stage, but we hope that he may be able to do a little more on the passage of time issue. Again, we may need to return to that.
 I shall give a couple of practical examples, because I have had the benefit of some advice from one of the specialist firms that deals with extradition cases: Victor Lissack and Roscoe. When they consider whether the passage of time reference is needed in part 1 as well as in part 2, it may help the Minister and his officials to be aware of the examples that it gave. That firm, to whose partner, Robert Roscoe, I am indebted, said that it recently, some 15 years after the alleged commission of the offence, had a case from Turkey in which extradition was sought for offences that had occurred in the late 1980s. That is particularly relevant to the concerns that I share with my hon. Friend the Member for Stratford-on-Avon that Turkey may one day become a member of the EU and therefore benefit from the part 1 provisions. I have expressed my views about whether Turkey is an appropriate entrant to the EU; unless it completely transforms its human rights record, I do not think that it should be. Nevertheless, Turkey wants to become an EU member, and if it is successful, it could benefit from the part 1 powers. 
 The Turkish application was made despite the fact that Turkey's Government were aware that the defendant was living openly in the United Kingdom, where he had been granted resident status. Furthermore, the Turkish Government had contacted the United Kingdom about commencing extradition proceedings three or four years previously, but had then dallied before lodging the request for extradition. Fifteen years is an extraordinary passage of time, which is why we need the protection. 
 Another brief example involves Italy, which is obviously an EU member. Victor Lissack and Roscoe acted for an Italian who had been living in the country for several years. He was living openly and travelling internationally on his passport. The Italians sought his return for an alleged offence that had occurred in the late 1970s but did not try to commence extradition proceedings until the late 1990s. That is a gap of about 20 years, which is why we need the safeguard in part 1 to mirror what is already in part 2. I hope that the Minister will undertake to examine that. 
 I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 11 ordered to stand part of the Bill. 
 Clause 12 ordered to stand part of the Bill.

Clause 13 - Extraneous considerations

Question proposed, That clause 13 stand part of the Bill.

John Maples: I want to raise two or three points about the clause. When I spoke this morning about my general opposition to the framework directive and the procedures that occur under it, the Minister assured us that all our partner countries had subscribed to the European convention on human rights and are democracies in which the rule of law reigns supreme. He said that we have nothing to worry about in those countries' criminal jurisdictions or in the way in which they conduct their criminal procedures. Therefore, I have to ask why it was felt necessary to include clause 13, which envisages that one of our EU partners—a subscriber to the ECHR—might use the arrest warrant under the framework directive as a subterfuge for prosecuting someone because of their
''race, religion, nationality or political opinions''.
 That is a fundamental provision, which goes much further than the fears that I expressed this morning. I find it extraordinary that the Government can say that all the countries' jurisdiction procedures are fine, that none of our citizens should have anything to fear as they will get a fair trial before an independent judiciary, and that the countries are all signatories to the ECHR, but also feel it necessary to include clause 13, which clearly envisages the opposite. If clause 13 is necessary, we have a serious problem. It bears out all my fears that we cannot and should not trust the judicial systems of some EU countries. The Minister owes us an explanation, either later or in an intervention, about why it was felt necessary to include the clause. I find it absolutely extraordinary that the Government can hold both positions—that the clause is necessary but that we have nothing to fear from the framework decision because all parties are satisfactory. 
 Just to prove that I am not a complete softy on extradition issues, my second point is that the clause opens a huge gap through which the defence could drive a coach and horses, especially in terrorist cases, which is where the whole procedure started. Rachid Ramda has succeeded in getting the House of Lords to throw out his extradition and send it back to the Home Secretary on the grounds that he cannot receive a fair trial in France as an Arab Muslim. I must say that France is not high on my list of countries about whose judicial systems I have some doubt. I have a great deal of confidence in the French judicial system, but the House of Lords does not. It believes that it is not just possible, but distinctly possible, and a grounds for refusing extradition, that an Arab Muslim might not receive a fair trial. 
 The second ground on which Rachid Ramda sought to fight his extradition was that part of the evidence against him was given by a co-accused who had not got to the United Kingdom, but had been arrested, tried and sentenced in France. It was somehow decided that the French had extorted evidence from this other 
 witness against Mr. Ramda. [Interruption.] I hope that I have the Minister's attention, because this is an important point. I agree with the Minister that the framework directive seeks to close down a series of legal procedures that people can exploit to delay their extradition. Rachid Ramda has succeeded in delaying his extradition for more than seven years. I do not know whether it is better to be in Belmarsh than in a prison in Paris, but one way or another he is going to spend much of his life in prison. 
 The framework directive seeks to close down those artificial, legalistic defences that people whose extradition is sought can pursue, but the clause will open them up again. In that respect, the clause is extremely dangerous. The people who seek to use the clause may well be terrorist suspects, who by definition may be Arabs or Muslims, especially in the current climate of terrorism. We could allege that we could not receive a fair trial in another European country on the grounds of our race, religion or political opinions, but it may well be that an Arab or Muslim charged with terrorism would have a far better chance of raising those defences. We are closing down a series of legal procedures that people can go through and opening them up again in this clause. I will say the same about the human rights clause, but this clause is more specific. It should not be in the Bill. We should not be entering into the framework directive and passing part 1 if protection from the mis-exercising of jurisdiction on the part of our European partners is such as to necessitate the clause. On the other hand, we do not need the clause if those procedures are so satisfactory that there can be no doubt about them. 
 Is the exception permitted? I cannot find the part in the framework directive where it would be.

Nick Hawkins: I approve of what my hon. Friend the Member for Stratford-on-Avon has said. He made his points far better than I could have done. My right hon. Friend the Member for West Dorset (Mr. Letwin) raised the point on Second Reading that there is a mismatch between the framework directive, which includes the wide and undefined crime of ''xenophobia'', and clause 13, which sets out the political defence.
 My right hon. Friend referred to suggestions made by some commentators that the British Government's bombing of Kosovo might have been against international law, and therefore that someone might at some stage accuse Ministers in the British Government of a xenophobic, or even racist, action. Our suggestion is that the Government may have been so concerned about the possibility of a judicial authority or junior magistrate in another country making the same sort of allegations against serving Ministers that were made against Senator Pinochet that they have included the political defence in clause 13. 
 However, there is a mismatch. As my hon. Friend said, serious offenders might slip through the loophole. Even someone who had committed a serious criminal offence such as a bank robbery could say that it was done to raise funds for a political cause. It opens up a loophole, but does not match what is in the framework directive, so it does 
 not make sense. The Minister should explain exactly how clause 13 links in with the section on xenophobia and racism in the framework directive and deal with the other valuable points raised by my hon. Friend the Member for Stratford-on-Avon.

Bob Ainsworth: Clearly we are missing each other. We can sometimes become amused during parliamentary proceedings.
 Opposition Members have argued repeatedly—on Second Reading, in scrutiny Committees and in Committee now—that we cannot trust foreign jurisdictions to treat people correctly when we extradite them. At the behest of the Joint Committee on Human Rights, we made provision to deal with the problem, but Opposition Members do not like it and do not want it in the Bill. It is all very strange, as is praying in aid the Ramda case, in which someone is being sought in connection with allegations of terrorism. The hon. Member for Stratford-on-Avon has repeatedly said that he does not care about safeguards when it comes to terrorists: he is concerned only in respect of other sorts of criminality. It is rather confusing. 
 The truth is that we would be criticised whether or not we included the provision. If we had not included it, hon. Gentlemen would have said that foreign jurisdictions could not be trusted not to mistreat people. So we put the safeguard in and, lo and behold, they stand up and say, ''Isn't it appalling? This safeguard is in the Bill, so doesn't the fact that you have included it prove that it is necessary?'' I am delighted by such contributions.

John Maples: The Minister is missing both my points. First, my concerns about criminal jurisdictions in other places have nothing to do with people being prosecuted on grounds of their race, religion or political opinions. I am worried about the slowness and inexactness of procedures, and the fact that, in some countries, the judiciary is not independent of the Government. If the Minister wishes to create a blanket exemption for extradition to countries whose judicial system we do not regard as satisfactory, I go along with that. However, specifying a provision that plays right into the hands of terrorist suspects is extraordinary.
 Let us set aside the first part of the case, which the Minister finds amusing. My point about Ramda, which the Minister mocks, is spot on. When I raised the Rachid Ramda case with the Prime Minister, with the Home Secretary and on Second Reading, I was told that it demonstrated precisely the need for this legislation and for the framework directive to stop people running all these appeals, legal loopholes, applications for habeus corpus, judicial review and so forth, which had gone on for seven years—[Interruption.] The Minister shakes his head, but I would be grateful if he would explain why. 
 Let us suppose that the Bill becomes an Act and someone sets off a bomb in the Paris metro. The person alleged by the French authorities to be responsible comes to the United Kingdom: the authorities issue an arrest warrant, and we arrest the person. When he is brought before the judge, he could 
 point to section 13 of the Act and insist that he could not possibly secure a fair trial in Paris. He could then re-run all the arguments that have been run in the House of Lords to say why he would not get a fair trial. I do not understand how that could not happen. We are trying to close a loophole and immediately re-opening it.

Bob Ainsworth: I cannot remember who is giving way to whom. I gave way to a long intervention, so I still have the Floor.
 The dangers that the hon. Gentleman mentioned are not a problem. The proposal simply gives the defendant and his representatives the opportunity to claim, if they so wish, in front of a district judge that a fair trial would not be granted to them for the reasons mentioned. If they can satisfy the district judge that that is so and that they would not receive a fair trial for the reasons stipulated in the clause, within the time frames required by the procedure in part 1, there is a bar to extradition. The clause gives an opportunity to make the case. 
 In response to the hon. Gentleman's question, that point is covered in the preamble to the framework decision, paragraph (12) of which states: 
''This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union, in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons.''
 The proposal was included in the Bill at the request of the Joint Committee on Human Rights. There are few, if any, circumstances in which someone will be able to satisfy a judge that such conditions apply to a European partner, but if they are able to make such a case, it must be within the time framework of the European arrest warrant, not over five years, as in the case of certain individuals.

John Maples: I am grateful to the Minister for referring me to the relevant paragraph in the framework decision. However, he dismissed my argument that someone in Rachid Ramda's position could run these arguments again under this clause, although perhaps for not quite so long, because there is not scope for so many appeals. However, Rachid Ramda could do so because he has won exactly these two arguments in the House of Lords.

Bob Ainsworth: What is the matter with that? If an individual believes that he is capable of convincing a judge that he will not receive a fair trial for whatever reason, what is the matter with his being entitled to make that case? The problem with the present arrangements is that he can make a case again and again at every stage of the extradition arrangements. He can then apply for those decisions to be subject to judicial review and on it goes, round and round, for years on end. That is what we are trying to prevent. However, we are not trying to prevent people from being able to make a case that they should not be
 extradited because their fundamental rights will be denied if they are.

John Maples: The clause simply refers to race, religion, nationality and political opinion. Many other fundamental rights might be affected. It is extraordinary that the Government should single out to protect as four areas in which people's rights might be affected exactly the four areas successfully exploited for seven years by someone whose case is among those that led to the Bill. The Minister cannot say that nobody will use the arguments in that way because it is happening as we speak.
 Question put and agreed to. 
 Clause 13 ordered to stand part of the Bill. 
 Clause 14 ordered to stand part of the Bill.

Clause 15 - Death penalty

John Burnett: I beg to move amendment No. 138, in
clause 15, page 7, line 1, leave out subsection (2).

Anne Begg: With this we may take amendment No. 32,
clause 15, page 7, line 1, leave out 'which he considers adequate that' and insert 'from the Secretary of State confirming that in his view'.

John Burnett: The death penalty should be an absolute bar to extradition to any category 1 country and no country with the death penalty should be accorded category 1 status. We discussed the amendment with Justice and there is no reason for including clause 15(2), which relates to category 1 countries.
 Earlier, we debated an amendment that stipulated which countries should or could be category 1 countries. No country with the death penalty should be entitled to become a category 1 country. I know that the Government did not accept our amendment, but we are highlighting the fact that category 1 status confers immense privileges in respect of extradition. The abolition of the death penalty means a great deal to many hon. Members, and there should be no possibility of anyone's being extradited from this country to face the death penalty. 
 Subsection (2) is inconsistent with the UK's ratification of protocol 6 of the European convention on human rights, which abolishes the death penalty in peacetime, and the UK's recent signature on protocol 13, which abolishes the death penalty in all circumstances. I look forward to hearing what the Minister has to say about that. Can he envisage circumstances in which any country with the death penalty is admitted into category 1?

Nick Hawkins: I shall deal first with amendment No. 32, which would have a different effect. It would ensure that there was parliamentary responsibility by saying that any assurances should be given by the Secretary of State. I hope that, even if the Minister cannot accept the amendment today, he might accept that there is a strong case for parliamentary scrutiny in this regard. The Home Secretary would be the
 appropriate person to give assurances to the courts on behalf of Her Majesty's Government. Simply referring to a written assurance to a judge is not adequate; the Secretary of State should be specified. We are talking about only a few cases, so that would not place a huge extra burden on any Home Secretary.
 That is separate from the death penalty issue. Some members of the Committee will know that I have always supported reintroducing capital punishment for a small number of crimes. That has always been a free vote issue, so in saying that my views have not changed I am not in any way expressing Opposition policy, but it would be inconsistent of me to talk about the Liberal Democrats' amendment when I do not share their views about the death penalty. 
 My hon. Friend the Member for Ryedale (Mr. Greenway) and I have expressed views in a previous Parliament on a free vote seeking to reintroduce capital punishment for the murder of a police officer in the carrying out of his duty. If that became UK law in future, I would not want to prevent us from extraditing back here people who had committed crimes. As I said, it is a free vote issue, but I thought that I should state on the record that my views had not changed in any way, shape or form, so that people knew where I stood. I simply restrict our amendment No. 32 to the one small category and will listen with interest to what the Minister has to say on the wider issues.

Alistair Carmichael: I shall speak in support of Liberal Democrat amendment No. 138, which has been moved by my hon. Friend the Member for Torridge and West Devon. Subsection (2) is incredible; I have never seen anything quite like it. Will the Minister tell us from whom it is anticipated that the written assurance will come? Will it come from an independent third party in the country that is seeking extradition, a jurist in this country or some other source from within Government? In any event, it would require a remarkable amount of second guessing on someone's part. The availability of the death sentence must surely be a sufficient barrier to extradition, and to have someone say, ''Well, yes, we know we can carry out the death penalty, but we don't often do it'' is wrong. The sentence imposed at the end of a trial will often be capricious, dependent on the judge in question and something that cannot properly be second guessed at the start of the trial. For all those reasons, it is unsatisfactory for subsection (2) to be in the Bill. The statement in subsection (1) is clear, concise and consistent with our obligations under the European convention on human rights, as my hon. Friend has already said.
 I am less than impressed by the idea of political scrutiny in the Conservative amendment No. 32. I do not consider such mixing of the Executive and judiciary to be healthy, and one can easily imagine circumstances in which a Secretary of State's trade, political or other considerations might influence his view of whether it is in Britain's interests to upset a foreign power by not agreeing to an extradition. My point is that a judge must be concerned with the rights of the individual who is before him, while a Secretary of State will inevitably have wider considerations. 
 Mixing the powers of the Executive and judiciary in such a way would be undesirable to say the least.

George Howarth: I agree with the hon. Member for Orkney and Shetland. The Conservative amendment No. 32 would take matters too far into the political arena. I recall being a junior Home Office Minister when the then Home Secretary had to determine the Pinochet extradition warrant, which had been received from a prosecuting magistrate in Spain. I do not want to go into too much detail about that, as it would be inappropriate for me to do so, but the extent to which a cordon sanitaire had to be created around the Home Secretary to allow him to make the decision free from any political considerations—as I believe that he did—was such that I am convinced that to bring a Secretary of State into the equation would be a mistake.
 I do not share the views of the hon. Member for Surrey Heath on the use of the death penalty, but I think that it is necessary to include the provision in the Bill. It is possible that one of the listed territories may, God forbid, elect a far-right Government who would simply ignore EU regulations and obligations and go ahead and use the death penalty. In those circumstances, it would be perfectly legitimate for that to be taken into account.

Bob Ainsworth: The Conservative amendment No. 32 would require the Secretary of State rather than the judge to evaluate the worthiness of the undertakings given by the requesting state that, if the person was extradited, the death penalty would not be imposed or carried out.
 It is unlikely that the clause will ever be used, because no EU state currently operates the death penalty, and, as I have said repeatedly, the Government have no plans to add any non-EU countries to category 1 other than Iceland and Norway, because of the special arrangements that those countries have with the EU.

Nick Hawkins: The Minister may have slightly misunderstood the amendment, because he said that the Secretary of State rather than the judge should carry out the evaluation. The wording of our amendment states that the judge should receive an assurance from the Secretary of State. It does not take the judge out of the picture, but requires the Secretary of State to provide the evidence to the judge.

Bob Ainsworth: It is not necessary to draw the Secretary of State back into those decisions because we are concerned with category 1 countries and our EU colleagues. However, the reason that we included the clause in part 1 is that it is theoretically possible that a country which retains the death penalty for a limited range of offences could be added to category 1, or that one of the category 1 countries might take the decision to introduce the death penalty for a limited range of offences. It is worth retaining the clause as a useful safeguard.
 Assurances in respect of the death penalty are a long-standing feature of extradition, and so I am not surprised that hon. Members are aware of them. Most extradition procedures occur without much publicity, 
 with the exception of the Pinochet case, as my hon. Friend the Member for Knowsley, North and Sefton, East mentioned. The other exceptions might be cases that become notorious because of the length of time it has taken for them to reach the public domain. 
 Assurances with regard to the death penalty play an important role, not least because we believe that it should be possible to extradite in cases in which the fugitive might be eligible to receive the death penalty. Such assurances must come from a person who is competent to issue them and must bind the bodies that impose and carry out the sentence. The assurances will not necessarily come from a country's Executive, which is the usual argument for involving British Ministers. They could, for example, come from the prosecutor concerned who has discretion as to whether to seek the death penalty. That will continue to be the case under the Bill.

Nick Hawkins: I cannot resist teasing the Minister for saying that the assurances will normally come from the prosecutor. In a debate earlier this afternoon, the Minister was at great pains to point out that there was no prosecution, so there could not be a prosecutor. I think that he means counsel for the British Government.

Bob Ainsworth: The hon. Gentleman is right. We would need to receive assurances, and they could come from the prosecutor.
 We see no reason to involve Ministers in a decision that we believe a district judge is fully competent to take. There have been no cases in living memory in which an assurance has been given and not honoured, and we see no reason why that should change in future. 
 The judge would need to be satisfied that any such assurance is binding. If the judge is in any doubt about the validity of the undertakings he must refuse to extradite. 
 By doing away with the possibility of considering such assurances, the Liberal Democrat amendment would remove the possibility of extraditing people to countries where the death penalty could be applied. That could have perverse consequences. It could mean that the UK provided sanctuary for someone accused abroad of the most heinous crimes. While we readily extradite to the same country for less serious crimes, we would not extradite a person because the death penalty was available, despite the fact that we had received cast-iron assurances that the death penalty would not be imposed or would not be carried out. We would extradite for theft but not for murder. The murderer would not be brought to justice. That would be the effect of the amendments. There would be a bar on extradition, despite the fact that those assurances had been given.

John Burnett: I remind the Minister that we are discussing category 1 status countries.

Bob Ainsworth: We are and I am talking about the principle. I have tried to reassure him that there is very little likelihood that this clause would be used in category 1 countries. When we come to category 2 we will see that the same clause is included. One of our
 main extradition partners is the United States, which has the death penalty and which gives us the assurances that are required. We regularly, or as regularly as we do anything relating to extradition, extradite people back to the United States for capital offences and we receive the appropriate assurances that capital punishment will not be carried out.

Alistair Carmichael: I should like to explore what the Minister describes as a great point of principle. I do not understand the point he is making. He seems to be saying that we will extradite if we can get an assurance from the country seeking extradition that, ''Well, it is murder, but not a very bad murder so we will not apply the death penalty.'' If it is such a bad murder or series of murders that the country seeking extradition is not prepared to give that assurance, presumably we will not proceed to extradite. Where is his principle then?

Bob Ainsworth: In order that we may deal with the principle, let us forget for a minute the likelihood of this happening in a category 1 country. What would the hon. Gentleman have us do? We have an assurance, with a particular crime, that if the person is found guilty of that capital offence, capital punishment will not be inflicted on them. When we are satisfied that a country will honour the assurance that it has given us, do we want to tell that country that it cannot have the person back to put him on trial and cannot lock him up—[Interruption.] Well, that would be the effect of the amendment.
 The amendment would put a bar on extradition to countries where capital punishment was available. That is not how we do business at present. We extradite people to the United States but if we do so when they could be subject to capital punishment we receive the appropriate assurances. The death penalty is not carried out and yet the murderer, for instance, is taken back before a court in the United States, is punished and is locked up. 
 I should have thought that the Liberal Democrats would want not want murderers to be able to walk away. That would be the effect of the amendment. As I said, it would be extremely unlikely in a category 1 country, but I ask them to accept that the assurances are appropriate. They have been adequate. They have avoided capital punishment being carried out and yet they have allowed people who have committed heinous crimes to be returned to countries where that is available and punished in another way.

John Burnett: I suspect that this might be the conclusion of our proceedings this evening, but I do not want to jump the gun. This is an important matter and deserves the great scrutiny and debate that we have had. As the Minister confirms, the clause relates to category 1 territories. The procedure is entirely different for them. We are not prepared to withdraw the amendment. When a state in category 1 operates the death penalty, if the person could be, will be or has been sentenced to death, there should be no extradition.
 Question put, That the amendment be made:—
The Committee divided: Ayes 2, Noes 9.

Question accordingly negatived. 
 Clause 15 ordered to stand part of the Bill. 
 Clause 16 ordered to stand part of the Bill. 
 Further consideration adjourned.—[Mr. Derek Twigg.] 
 Adjourned accordingly at nineteen minutes to Six o'clock till Tuesday 14 January at twenty-five minutes past Nine o'clock.